Tuesday, April 8, 2008

How Trials Operate in the New Torture Regime

What purpose does a trial serve when it's conducted by a state claiming the power to torture confessions from a suspect, or "evidence" from a witness?

Obviously, an exercise of this kind isn't carried out in the interest of establishing the truth beyond a reasonable doubt: Torture is a very effective means of compelling someone to submit to an official story, but entirely unreliable as a method of learning the truth. Thus it follows that a legal system in which torture is practiced is devoted to protecting and glorifying a ruling elite than in pursuing justice in any sense of the expression.

In the Military Commission system created by the Bush Regime, "evidence" can be obtained through torture -- whether in the form of testimony or confessions. The prosecution is permitted to introduce sealed evidence, and to insulate "expert" witnesses from impeachment by the defense. Defendants are presumed guilty; indeed, the entire exercise is defined by the assumption that those tried in such forums are guilty by definition, the "worst of the worst." With guilty verdicts a foreordained conclusion, the default sentence is death.

The Commission itself is under the supervision of a presidential appointee called the "convening authority" -- essentially a kind of legal vizier, or a special minister for show trials. Not only does this mean that the system exists entirely outside the framework created by Article III of the Constitution (although the Supreme Court, conceivably, could simply assert appellate jurisdiction over it), this also means that its operations would be guided by the political priorities of a presidential administration or political party, rather than by anything remotely akin to a commitment to the truth.

This assessment draws on the brief (.pdf) filed April 3 by Navy Lt. Cmdr. Brian Mizer, defense counsel for Salim Ahmed Hamdan, one of eight Guantanamo detainees scheduled for trial this year before a Military Commission.

"High-value" Hamdan, Richard Pryor look-alike and accused limo driver for Osama bin Laden. He might not be a nice guy, but it seems odd that he'd be a first tier war criminal; after all, was Hitler's chauffeur prosecuted at Nuremberg?

Mizer protests that the Commission system, already designed to favor the prosecution, has been fatally compromised by "unlawful command influence" from the Bush administration. Mizer cites the account offered by Col. Morris Davis, the former chief prosecutor at Guantanamo, of an August 2005 conversation with Pentagon general counsel William J. Haynes: As noted in this space earlier, when Davis mentioned the possibility of acquittals, Haynes replied, "Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions."

Davis also recalled a September 26, 2006 meeting of the Special Detainee Follow-up Group at which deputy secretary of defense Gordon England said "there could be strategic political value to charging some of them before the [2008] election." Viewed in this light, the Commission would be the ultimate "527" advocacy group (albeit one that would be funded directly by the taxpayers).

The Mizer brief also describes the efforts of undersecretary of defense for intelligence Stephen Cambone -- who has been indicted for war crimes (albeit by a German court with no proper jurisdiction) for his role in the Abu Ghraib atrocities -- to get the "Justice" Department more deeply involved in the Military Commissions. Cambone claimed that this was because military attorneys lacked the "sophistication" to deal with cases brought before the Commission. It's quite likely that the real intent here was to limit the damage that could be done to the show trial apparatus by military officials (such as Davis and Mizer) bound by an anachronistic sense of honor and an inconvenient loyalty to the United States Constitution.

One of the most remarkable disclosures in the Mizer brief deals with the role of Evan Kohlmann, a designated counter-terrorism expert tapped to testify in the Hamdan trial. Mizer sought permission to call an expert of his own to act as a rebuttal witness against Kohlmann; that request was denied by Susan Crawford, the White House political hack designated "convening authority" for the Military Commission.

Mr. Kohlmann embodies a fascinating, and very disturbing, nexus between the Military Commission system and the civilian "justice" system as it's been modified to fight the "war on terror." A frequent guest on cable television programs, Kohlmann maintains the GlobalTerrorAlert.com website and contributes to Steven Emerson's Investigative Project. He's also frequently called on as an expert witness, both domestically and for United Nations human rights tribunals.

Roughly four years ago, Kohlmann was called as an "expert witness" in the trial of Yassin Muhiddin Aref and Mohammed Mosharref Hossain. That trial illustrates the extent to which our criminal "justice" system already operates in much the same way the Military Commission is intended to.

Aref is an Iraqi Kurd who migrated to the United States as a refugee in1999; Hossain is a Bangladeshi expatriate and U.S. citizen. They both lived in Albany, New York. Aref and Hossain worshiped at the same mosque, and were both targeted by Shahed Hussain, aka "Malik," a Pakistani con-man hired as an infomant/provocateur by the FBI.

In July 2003, the FBI sent "Malik" to a small pizza restaurant owned and operated by Hossain, the middle-aged father of six young children with no previous criminal record. The "lure" used by Malik was a promise to help Hossain obtain an identification card for his mentally handicapped brother; Malik -- who, as it happens, was under indictment and faced criminal charges for driver's license-related fraud -- was recorded assuring Hossain that there was "nothing illegal" about what they planned to do.

Malik had ingratiated himself with Hossain, offering to loan him $50,000 to help his struggling pizza shop. The money, Malik explained, came from the purchase of a surface-to-air missile intended for use by a Pakistan-based Islamic terrorist group called Jaish-e-Mohammed, or JEM.

In the more than fifty hours of covertly recorded conversations, neither Aref nor Hossain expressed support of any kind for terrorism of any variety. Aref, who worked as a janitor before becoming an Imam, was recorded urging Malik to avoid terrorists, insurrectionists, and Islamic radicals of all varieties, and to promote Islam by doing good works on behalf of others. Hossain was apparently so untutored in the ways of radicalism that he thought the term "JEM" referred to a musical act.

In August 2004 the FBI consummated its little sting by arresting Aref and Hossain and accusing them of laundering money on behalf of terrorists abroad ... which they actually didn't do, you see, because the "plot" was nothing more than an elaborate ruse by the FBI. Since they hadn't actually done anything materially to support terrorism, US Attorney Glenn Suddaby, who has built a career out of useless "trophy" prosecutions, accused them of being "willing to help terrorists." Assuming this is a crime of any sort, would be a "state of mind" offense prosecutable only in a totalitarian system, since no other kind of government would claim jurisdiction over an unspoken, un-acted-on "willingness" to commit criminal acts.

Grandiose claims were made to the effect that Aref had been targeted because his name and contact information had been found in an al-Qaeda document discovered by U.S. troops in Iraq. That "evidence" was deemed classified, and the defense wasn't permitted to inspect it, much less rebut it.

The prosecution also claimed Aref was "linked" to Mullah Krekar, the founder of Ansar al-Islam, a Kurdish Sunni Muslim group of a jihadist bent. As Stephen Lendman points out, Aref had a distant connection to Krekar: In the late 1990s he worked as a gardener in Damascus for an official in the Islamic Movement of Kurdistan (IMK), in which Krekar was an official before he founded Ansar-al-Islam in 2001.

The IMK was an ally of Washington, and when the Bush administration was gearing up for war with Iraq in 2002, it expected Ansar to fall in line, as well. When Krekar -- perhaps thinking of what had happened to the Kurds and other U.S. "allies" after the first Gulf War -- refused to play along, Washington slapped up a smear campaign against him, describing Ansar as the "missing link" tying Saddam to al-Qaeda, accusing Krekar of drug smuggling, and pressuring allies to prosecute him.

Krekar has lived in Norway as a political refugee since 1991. In 2003 the Norwegian government investigated charges that he was involved in terrorism. After his indictment, Norwegian investigators went to Iraq to double-check the U.S.-provided "evidence" against Krekar. They learned that the key witness, Didar Khalan, had been tortured into incriminating Krekar. This revelation prompted Norwegian authorities to drop the charges.

However....

The "link" between Krekar and Aref remained active, and was apparently used to justify the sting operation. For his part Hossain was accused of involvement with terrorism, and prosecutors claimed he had admitted as much: A covertly recorded conversation with Malik included the statement, "We are members of Jamaat-e-Islami."

As it happens, there are many organizations of that name in various Muslim countries; some of those groups are terrorist organizations. In Bangladesh, the Jamaat-e-Islami is the majority party, founded in India back in 1941. Although strongly authoritarian (as Islamic religious parties tend to be), it is not itself a terrorist group. Calling a Bangladeshi who belongs to the JEI party is a terrorist is somewhat like saying all Republicans support torture.

The first expert witness called by the prosecution in the case of Aref and Hossain, Rohan Gunaratna, acknowledged in a pre-trial deposition that Hossain could be a member of JEI without having anything to do with terrorism. At the last possible minute, Gunaratna was removed and Evan Kohlmann was brought in as a replacement.

He don't know nuffin' 'bout no Bangladeshis ... but he has access to Google: Counter-terrorism "expert" Evan Kohlmann.

Kohlmann, who possesses degrees from some reputable institutions of higher learning, may be a very bright young man. But he knows about as much about Bangladeshi matters as Sean Hannity knowns about ... well, anything.

Which is to say that on this one particular subject -- which just happened to be the central pillar of the case against Hossain -- Kohlmann was a blustering idiot.

Questioned by the defense during a September 2006 pre-trial deposition, Kohlmann admitted not knowing (inter alia), the name of the Bangladeshi Prime Minister; the number of political parties active in that country; the leader of the JEI party, which he described as "a minority party"; the party's platform; the number of JEI Party members in the government; the name of any other major party in Bangladesh; the role of the Bangladeshi National Party in the country's political system (it is an ally with the JEI in a coalition controlling 67 percent of the seats in parliament), although he stammered helplessly that "the name sounds vaguely familiar"; he admitted that he had never been to Bangladesh, interviewed any JEI representatives, written any papers about the subject, or been interviewed about it in the media.

Yassin Aref, second from left, leaves his 2007 sentencing hearing in chains and under conspicuous, heavily armed guard.

Despite admitting, under oath, to possessing a mind entirely unsullied by relevant knowledge in the field of his supposed expertise, Kohlmann was certified "Good Enough for Government Work" by the judge, and permitted to testify. Following Kohlmann's performance on the witness stand -- during which he displayed ignorance remarkable for its singular purity -- the defense moved to have his testimony dismissed. Two days later, Kohlmann produced a supplemental deposition "correcting" many of the errors of rudimentary fact he had committed.

As the defense would later note, Kohlmann "had transformed from one who did not know the name of the Prime Minister of Bangladesh on Monday into an expert on Bangladesh on Wednesday morning" -- as the result of an interlude of frantic Googling.

Yet Kohlmann's "expert" testimony was permitted to stand, as was the "classified" evidence against Aref, the snippets of "incriminating" conversations illegally obtained through unconstitutional wiretaps, and the "evidence" manufactured by the FBI's provocateur (who was spared a prison term and deportation in exchange for his labors). Even the presiding judge who permitted this case to proceed was constrained to describe it as remarkably weak.

Bipartisanship in action: "Comrades" reach across party lines in defense of the Heimat.

A brief recap would be appropriate here:

The Regime, seeking to punish a Kurdish Muslim leader for refusing to collaborate in the war on Saddam, tortured a prisoner into falsely accusing that leader of involvement in terrorism. Because a helpless Kurdish refugee in upstate New York had the most tenuous of connections to the targeted Kurdish leader, the refugee was also targeted and kept under illegal electronic surveillance. To get to that refugee, the FBI sent a paid provocateur -- somebody who had committed actual crimes -- to manipulate a U.S. citizen into being a stalking horse by taking advantage of the citizen's financial and family concerns. The trial employs secret evidence and the "expert" testimony of a government-approved witness who knew nothing of any relevance to the proceedings.

The jury should have wadded this case up and thrown it back in the prosecutor's face. Instead, it simply ratified the charges without exercising so much as a particle of independent, critical thought. The Feds had demanded 30 years; the judge, as if seeking to demonstrate his Solomonic wisdom, cut each sentence in half.

I'll say this much: Examining the details of this and many similar cases does mitigate somewhat the horrors represented by the new Military Commission system. If juries can swallow a case like this -- the sort of thing that would trigger the gag reflex of a Tijuana whore -- then we might as well grant the Torture Regime's obvious wish and do away with civilian courts outright.

20 comments:

Anonymous
said...

Reading the interview with Mr Aref I was struck by his joy and peace, considering all he has and will continue to face. I hope that in my own life such radiance will begin to be seen - especially as times become tougher and the harsh reality of the times cause hopes and dreams to evaporate.

If we can keep a sense of humor despite the Commissars then we haven't lost.

A man I respect and admire writing in another context surely foresaw this Gitmo version of America:

"The government's approach to the Waco confrontation--shoot in haste and invent a justification at leisure--is that of the police state. Once the precipitate assault on the sect had resulted in deaths, the government claimed that those deaths justified the raid, in spite of the fact that the raid had caused those deaths." Grigg notes that while in a free society "laws are relatively few and easily understood," in a totalitarian police state "laws are plentiful and frequently unintelligible, and the state can intervene at whim into a person's private affairs."

I found out personally some time ago that juries are nothing but the prosecution's and/or judge's yes-people. They nod their head in serious affirmation that they will consider all matters in determining truth...until it gets to 4:30 pm and dinner calls.

Jurists are fairly representative of the "sheeple" population. Jury nullification, which should occur quite frequently, is an unknown tool of the jury, and if mentioned in the selection process, will earn instant dismissal.

If, God forbid, I find myself in a situation again, I will NEVER opt for a jury trial. I saw very vividly how the sheeple were led to pasture and came to a "compromise" verdict which was no compromise at all, but merely a "lesser" degree of "guilty".

The sheeple have lost the ability to think, reason and stand up for what is truly and lawfully "right".

"then we might as well grant the Torture Regime's obvious wish and do away with civilian courts outright"

Unfortunately, this has been the case for some time. There is no justice in ameriKa's justice system - only pre-ordained outcomes (as anyone who has ever been through experience of our kangaroo family courts can tell you). And, with the plea-bargaining ruse, I suspect much the same in the criminal courts.

The founding ideas of this country no longer exist as the people have become ignorant and uneducated. Now we have the velvet glove and iron fist mentality. When enough people fall under the yoke of Leviathan maybe we will rise up and destroy it. One can always dream . . .

While I do not agree with torture in the slightest, what I am about to say comes in the interest of right logic. I would like to point out that by the time Hitler's chauffeur had ever been tracked down, Hitler was dead. If Hitler were on the run, I'm sure his chauffeur would be (how would the badgethugs say it?) a "Person of interest," who would know the comings and goings of the person he drove.

As far as the government knows, apparently, Bin Laden is not dead yet. Not that they seem to care whether he is or not, of course. But his chauffeur might be a source of information on his whereabouts, places he has been, and contacts.

That said, torture is an animalistic act. I found this article on an otherwise somewhat nationalist website. http://www.centerforajustsociety.com/press/forum.asp?nav=publications&cjsForumID=1069 Seems to make a decent argument against torture, with a Christian bent.

Nice job on Charles Goyette's show this morning Will. I'm hopeful my request for you to appear might have influenced the decision to have you as a guest (but surely I'm not the only one making the suggestion to him)... I thought his affirmative response email might have been a "yeah, sure kid; now scram..."

I encourage everyone to listen to Goyette's show on:http://www.1100kfnx.com/

Thanks, johns! It was very kind of you to make the suggestion to Charles. Referring to him as the "anti-Hannity" -- just as we call some medicines antibiotics -- is quite apt: Charles is witty, articulate, principled, informative, polite, and brave -- the exact opposite of the traits displayed by the Lemur-browed ignoramus.

I've been an admirer of Charles for several years -- ever since he was cast out by the Clear Channel in Phoenix (despite having the best drive-time ratings) for daring to oppose the Iraq War. He's an authentic media hero, in my estimation.

Last Sunday, while the bishop of our church was visiting, we asked him why the church is not taking a more public stance against the war. After he mentioned a couple of recent statements, his wife commented, "The culture is against us."

We were all taught in school about the glorious revolution of 1776, and the ringing words of the Declaration of Independence. It is really hard to accept that by today's standards, Thomas Jefferson, Ben Franklin, and George Washington were TERRORISTS.

By today's standards, merely signing an updated Declaration of Independence calling for armed revolt against the usurper USGOV, would be grounds for arresting every signer under the PATRIOT act, for terrorist conspiracy. Bush would decide whether they would face civilian trials or military commissions.

This is not a liberty-loving culture. I say it with sadness, not glee. But it isn't. The question which torments me is whether a liberty-loving culture exists anywhere on the planet today. Evidently it does, in the libertarian world of cyberspace. Like-minded people abound, and we meet on Will Grigg's electronic stoop. But I can't jump through the screen and stay there.

I guess I should mention that I found out about both you and Goyette from listening to Scott Horton's AntiWar radio podcast (Despite being initially put-off by the name; I was still blindly following the "conservative" script put out by the Rushs & Hannitys at the time. Boy, am I a sucker...). I put in a request for a fresh appearance by you in that forum, as well.

In case anyone hasn't heard Horton's show; he can get a bit salty at times. Excellent show in any case (you should listen to his interview with Mike Gravel the other day--freaking hysterical, I tell ya!). As one person on his blog mentioned, you can learn more about what's actually happening in the world in a 2hr pirate radio show than a month of the MSM version of the "news".

Suffice to say, I find myself much better informed listening to Goyette and Horton, and your frequent appearances on Dr. Stan's show, than was the case under Rush & Company's tender ministrations.

I'd make one last recommendation to all for blog-cruising: Vox Day's site @ http://voxday.blogspot.com/

I think everyone will find lots of like-minded liberty-lovers there. And lots of one-liners and arguments, too.

US attorney Glen Suddaby who prosecuted Imam Aref was rewarded by president Bush and Senator Schumer with a nomination to become a Federal Judge. Suddaby prosecuted several high profile Muslims like Dr. Rafil Dhafir, re-tried activists like the St.Pats 4 after they were acquitted by a local jury, he has aggressively used Ricco laws to prosecute young black men in Albany and Syracuse. To learn more go to: www.LoyalBushie.orgmadis senner

"The question which torments me is whether a liberty-loving culture exists anywhere on the planet today. Evidently it does, in the libertarian world of cyberspace. Like-minded people abound, and we meet on Will Grigg's electronic stoop. But I can't jump through the screen and stay there." - Anon

Yes, I've contemplated this dilemma myself many times. I still would like to believe that given the opportunity many or most would choose a liberty based society but they no longer know of or could recognize it.

And yes, I agree that libertarian thinkers offer a great deal of hope an optimism. The biggest problem, and greatest asset, though is the principle of non-aggression and self ownership. It is very difficult for this libertarian mind to wrap itself around the idea that to restore the ideals of liberty one will probably very well have to violate non-aggression and self-ownership to restore an environment where liberty might have an opportunity to exist again.

It is sad indeed to resign oneself to the reality that logic and reason have no place and to restore liberty will probably require the hanging of a bureaucrat from every lamp pole available. I doubt anything less can possibly succeed.

And if we were to do so - would we become that which we seek to eliminate? A paradox to be sure.

Well, one would have to first assume, and this is a stretch, that the founding "ideas" were meant to ever last in the first place. When you stop and think about the laws that were shortly put into place to stop anyone from doing to the founders what the "founders" had just done to their brethren in the name of "freedom"... you get the creepy feeling that one gang of criminals was booted out to make way for another.

"Last Sunday.... his wife commented, "The culture is against us."

Isn't that telling you something! The church isn't influencing the culture. It has been co-opted and now operates as the department of religious obedience and subservience beholden to secular government.

"We were all taught in school about the glorious revolution of 1776..."

There again... So what exactly was the purpose of this purported "revolution"? If we are not allowed to exercise the very same "rights" today that the founders claimed from the beginning then it's all an evil farce and we owe the British an apology. History has shown that bullets bombs and bayonets are the usual remedy for folks who stray off the reservation.

Once upon a time, while well on my way to my master's in history, I made the mistake of chosing to research the life and death of Irma Grese. Seems some people are capable of making up the most outrageous lies about others in order to make political gains, even if those stories result in the death of that person. How much easier life could be if we would simply believe the fairytales like everyone else!

The whole das homeland security state is the last jobs justification program for the snarling snout public trough feeders. As nothing is made here anymore the only jobs are in prisons, wall st. shell games, das homeland 'vee vill keep u safe' hype or worthless mba programs complete with burger world hat and "do you want fries with that shake" diploma.

I had the "opportunity" last year to apply for a job with DHS but shook my head and realized I was going to fall for the same tentacled lies I'd been suckered into so many times long ago. I realized that out of desperation for want of employment, or simply fear, I'd be working within the belly of the beast. I'd have compromised myself again just for a buck. Government and I just don't seem to work well together in the employment arena. Better to live on the outside with a clear conscience than living on the public dime and lying to oneself.

The Bush administration said yesterday that it plans to start using the nation's most advanced spy technology for domestic purposes soon, rebuffing challenges by House Democrats over the idea's legal authority.

Sophisticated overhead sensor data will be used for law enforcement once privacy and civil rights concerns are resolved, he said. The department has previously said the program will not intercept communications.

"There is no basis to suggest that this process is in any way insufficient to protect the privacy and civil liberties of Americans," Chertoff wrote to Reps. Bennie G. Thompson (D-Miss.) and Jane Harman (D-Calif.), chairmen of the House Homeland Security Committee and its intelligence subcommittee, respectively, in letters released yesterday.

"I think we've fully addressed anybody's concerns," Chertoff added in remarks last week to bloggers. "I think the way is now clear to stand it up and go warm on it."

His statements marked a fresh determination to operate the department's new National Applications Office as part of its counterterrorism efforts. The administration in May 2007 gave DHS authority to coordinate requests for satellite imagery, radar, electronic-signal information, chemical detection and other monitoring capabilities that have been used for decades within U.S. borders for mapping and disaster response.

But Congress delayed launch of the new office last October. Critics cited its potential to expand the role of military assets in domestic law enforcement, to turn new or as-yet-undeveloped technologies against Americans without adequate public debate, and to divert the existing civilian and scientific focus of some satellite work to security uses.

Democrats say Chertoff has not spelled out what federal laws govern the NAO, whose funding and size are classified. Congress barred Homeland Security from funding the office until its investigators could review the office's operating procedures and safeguards. The department submitted answers on Thursday, but some lawmakers promptly said the response was inadequate.

"I have had a firsthand experience with the trust-me theory of law from this administration," said Harman, citing the 2005 disclosure of the National Security Agency's domestic spying program, which included warrantless eavesdropping on calls and e-mails between people in the United States and overseas. "I won't make the same mistake. . . . I want to see the legal underpinnings for the whole program."

Thompson called DHS's release Thursday of the office's procedures and a civil liberties impact assessment "a good start." But, he said, "We still don't know whether the NAO will pass constitutional muster since no legal framework has been provided."

DHS officials said the demands are unwarranted. "The legal framework that governs the National Applications Office . . . is reflected in the Constitution, the U.S. Code and all other U.S. laws," said DHS spokeswoman Laura Keehner. She said its operations will be subject to "robust," structured legal scrutiny by multiple agencies

I want to be very clear before my next comment that everybody knows that I do NOT IN ANY WAY CONDONE TORTURE.

But, actually, Mr. Griggs is wrong when he states that "Torture is a very effective means of compelling someone to submit to an official story, but entirely unreliable as a method of learning the truth." He should have said that uncolloborated information obtained under torture is an entirely unreliable method of obtaining the truth.

This is because, in fact, an interrogator's job is to entrap the interviewee into speaking his first lie. Once that is done, the interrogator has "won" and the subject will feel overwhelmed by everything the interrogator knows about him. The interregator can then slip in the questions he really wants answered, and the interviewee will not realize he's telling the interviewer what he's really after and doesn't already know. Torture, in this context, can be very effective in causing the victim to commit his first lie, thus unwittingly increasing the psychological pressure on himself when he realizes that he's been "caught out."

That being said, the best interrogators have almost universally been folks who are personable and rely on "informal" discussions to get their answers. I recommend reading the very interesting biography of Hans Scharff for more insight into this.